EXHIBIT 4.13
THIRD SUPPLEMENTAL INDENTURE
Third Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"),
dated as of October 18, 2004, among the entities listed on Schedule 1 attached
hereto ("GUARANTEEING SUBSIDIARIES"), each being a subsidiary of Peabody Energy
Corporation (or its permitted successor), a Delaware corporation (the
"COMPANY"), the Company, the other Subsidiary Guarantors (as defined in the
Indenture referred to herein) and U.S. Bank National Association, as Trustee
under the Indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to
the Trustee the First Supplemental Indenture dated as of March 23, 2004 to the
Indenture dated as of March 19, 2004, (the "BASE INDENTURE," and, together with
the First Supplemental Indenture, the "INDENTURE") providing for the issuance of
an unlimited amount of 5-7/8% Senior Notes due 2016 (the "NOTES"); as
supplemented by the Second Supplemental Indenture, dated as of April 22, 2004;
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiaries shall execute and deliver to the
Trustee a supplemental Indenture pursuant to which the Guaranteeing Subsidiaries
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "SUBSIDIARY
GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Base Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for
the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiaries
hereby agrees as follows:
(a) Along with all Subsidiary Guarantors named in the
Indenture, to jointly and severally Guarantee to each
Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and
assigns, irrespective of the validity and enforceability
of the Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at
maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal
of and interest on the Notes, if any, if lawful,
and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other
obligations, that same will be promptly paid in
full when due or performed in accordance with the
terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so
guaranteed or any performance so guaranteed for
whatever reason, the Subsidiary Guarantors shall
be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver or
consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of
a Subsidiary Guarantor.
(c) The following is hereby waived: diligence presentment,
demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company,
protest, notice and all demands whatsoever.
(d) This Subsidiary Guarantee shall not be discharged except
by complete performance of the obligations contained in
the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Subsidiary
Guarantors, or any custodian, Trustee, liquidator or
other similar official acting in relation to either the
Company or the Subsidiary Guarantors, any amount paid by
either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to
any right of subrogation in relation to the Holders in
respect of any obligations
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guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Subsidiary Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x)
the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the First
Supplemental Indenture for the purposes of this
Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed
hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article
6 of the First Supplemental Indenture, such obligations
(whether or not due and payable) shall forthwith become
due and payable by the Subsidiary Guarantors for the
purpose of this Subsidiary Guarantee.
(h) The Subsidiary Guarantors shall have the right to seek
contribution from any non-paying Subsidiary Guarantor so
long as the exercise of such right does not impair the
rights of the Holders under the Subsidiary Guarantee.
(i) Pursuant to Section 9.04 of the First Supplemental
Indenture, after giving effect to any maximum amount and
any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent
conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or
payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other
Subsidiary Guarantor under Article 9 of the First
Supplemental Indenture shall result in the obligations
of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent transfer or
conveyance.
3. EXECUTION AND DELIVERY. Each of the Guaranteeing
Subsidiaries agrees that the Subsidiary Guarantees shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of
such Subsidiary Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS.
(a) The Guaranteeing Subsidiaries may not consolidate with
or merge with or into (whether or not such Subsidiary
Guarantor is the surviving Person) another corporation,
Person or entity whether or not affiliated with such
Subsidiary Guarantor unless:
(i) subject to Section 9.04 of the First Supplemental
Indenture, the Person formed by or surviving any
such consolidation or merger (if other than a
Subsidiary Guarantor or the Company)
unconditionally assumes all the obligations of
such Subsidiary
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Guarantor, pursuant to a supplemental Indenture in
form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the
Subsidiary Guarantee on the terms set forth herein
or therein; and
(ii) immediately after giving effect to such
transaction, no Default or Event of Default
exists.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor
corporation, by supplemental Indenture, executed and
delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary Guarantee endorsed upon the
Notes and the due and punctual performance of all of the
covenants and conditions of the Indenture to be
performed by the Subsidiary Guarantor, such successor
corporation shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had
been named herein as a Subsidiary Guarantor. Such
successor corporation thereupon may cause to be signed
any or all of the Subsidiary Guarantees to be endorsed
upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the
Subsidiary Guarantees theretofore and thereafter issued
in accordance with the terms of the Indenture as though
all of such Subsidiary Guarantees had been issued at the
date of the execution hereof.
(c) Except as set forth in Articles 4 and 5 of the First
Supplemental Indenture, and notwithstanding clauses (a)
and (b) above, nothing contained in the Indenture or in
any of the Notes shall prevent any consolidation or
merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor, or shall
prevent any sale or conveyance of the property of a
Subsidiary Guarantor as an entirety or substantially as
an entirety to the Company or another Subsidiary
Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of
the assets of any Subsidiary Guarantor, by way of
merger, consolidation or otherwise, or a sale or other
disposition of all to the capital stock of any
Subsidiary Guarantor, then such Subsidiary Guarantor (in
the event of a sale or other disposition, by way of
merger, consolidation or otherwise, of all of the
capital stock of such Subsidiary Guarantor) or the
corporation acquiring the property (in the event of a
sale or other disposition of all or substantially all of
the assets of such Subsidiary Guarantor) will be
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released and relieved of any obligations under its
Subsidiary Guarantee; provided that the Net Proceeds of
such sale or other disposition are applied in accordance
with the applicable provisions of the Indenture,
including without limitation Section 4.10 of the
Indenture. Upon delivery by the Company to the Trustee
of an Officer's Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made
by the Company in accordance with the provisions of the
Indenture, including without limitation Section 4.10 of
the First Supplemental Indenture, the Trustee shall
execute any documents reasonably required in order to
evidence the release of any Subsidiary Guarantor from
its obligations under its Subsidiary Guarantee.
(b) Any Subsidiary Guarantor not released from its
obligations under its Subsidiary Guarantee shall remain
liable for the full amount of principal of and interest
on the Notes and for the other obligations of any
Subsidiary Guarantor under the Indenture as provided in
Article 9 of the First Supplemental Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiaries, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiaries under the Notes, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the Commission that such a waiver is
against public policy.
7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. COUNTERPARTS. The parties may sign any number of copies
of this Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiaries and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
PEABODY ENERGY CORPORATION US BANK NATIONAL ASSOCIATION
("COMPANY") ("TRUSTEE")
By: /s/ WALTER L. HAWKINS, JR. By: /s/ PHILIP G. KANE, JR.
--------------------------------- ---------------------------------
Name: Walter L. Hawkins, Jr. Name: Philip G. Kane, Jr.
Title: Vice President and Treasurer Title: Vice President
EXISTING SUBSIDIARY GUARANTORS:
AFFINITY MINING COMPANY
ARCLAR COMPANY, LLC
ARID OPERATIONS INC.
BEAVER DAM COAL COMPANY
BIG RIDGE, INC.
BIG SKY COAL COMPANY
BLACK BEAUTY COAL COMPANY
BLACK BEAUTY EQUIPMENT COMPANY
BLACK BEAUTY HOLDING COMPANY, LLC
BLACK BEAUTY MINING, INC.
BLACK BEAUTY RESOURCES, INC.
BLACK BEAUTY UNDERGROUND, INC.
BLACK HILLS MINING COMPANY, LLC
BLACK STALLION COAL COMPANY, LLC
BLACK WALNUT COAL COMPANY
BLUEGRASS COAL COMPANY
BTU EMPIRE CORPORATION
BTU VENEZUELA, LLC
BTU WORLDWIDE, INC.
CABALLO COAL COMPANY
CHARLES COAL COMPANY
CLEATON COAL COMPANY
COAL PROPERTIES CORP.
COLONY BAY COAL COMPANY
COLORADO YAMPA COAL COMPANY
COOK MOUNTAIN COAL COMPANY
COTTONWOOD LAND COMPANY
CYPRUS CREEK LAND COMPANY
CYPRUS CREEK LAND RESOURCES, LLC
EACC CAMPS, INC.
EAGLE COAL COMPANY
EASTERN ASSOCIATED COAL CORP.
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EASTERN ROYALTY CORP.
EMPIRE MARINE, LLC
FALCON COAL COMPANY
GALLO FINANCE COMPANY
GIBCO MOTOR EXPRESS, LLC
GOLD FIELDS CHILE, S.A.
GOLD FIELDS MINING CORPORATION
GOLD FIELDS OPERATING CO. - ORTIZ
GRAND EAGLE MINING, INC.
HAYDEN GULCH TERMINAL, INC.
HIGHLAND MINING COMPANY
HIGHWALL MINING SERVICES COMPANY
HILLSIDE MINING COMPANY
INDEPENDENCE MATERIAL HANDLING
COMPANY
INDIAN HILL COMPANY
INTERIOR HOLDINGS CORP.
JAMES RIVER COAL TERMINAL COMPANY
JARRELL'S BRANCH COAL COMPANY
JUNIPER COAL COMPANY
KANAWHA RIVER VENTURES I, LLC
KAYENTA MOBILE HOME PARK, INC.
LOGAN FORK COAL COMPANY
MARTINKA COAL COMPANY
MIDCO SUPPLY AND EQUIPMENT
CORPORATION
MIDWEST COAL ACQUISITION CORP.
MOUNTAIN VIEW COAL COMPANY
MUSTANG ENERGY COMPANY, L.L.C.
NORTH PAGE COAL CORP.
OHIO COUNTY COAL COMPANY
PATRIOT COAL COMPANY, L.P.
PDC PARTNERSHIP HOLDINGS, INC.
PEABODY AMERICA, INC.
PEABODY ARCHVEYOR, L.L.C.
PEABODY COAL COMPANY
PEABODY COALSALES COMPANY
PEABODY COALTRADE, INC.
PEABODY DEVELOPMENT COMPANY,LLC
PEABODY DEVELOPMENT LAND HOLDINGS,
LLC
PEABODY ENERGY GENERATION HOLDING
COMPANY
PEABODY ENERGY INVESTMENTS, INC.
PEABODY ENERGY SOLUTIONS, INC
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PEABODY HOLDING COMPANY, INC.
PEABODY NATURAL GAS, LLC
PEABODY NATURAL RESOURCES COMPANY
PEABODY POWERTREE INVESTMENTS, LLC
PEABODY RECREATIONAL LANDS, L.L.C.
PEABODY SOUTHWESTERN COAL COMPANY
PEABODY TERMINALS, INC.
PEABODY VENEZUELA COAL CORP.
PEABODY-WATERSIDE DEVELOPMENT, L.L.C.
PEABODY WESTERN COAL COMPANY
PEC EQUIPMENT COMPANY, LLC
PINE RIDGE COAL COMPANY
POINT PLEASANT DOCK COMPANY, LLC
POND CREEK LAND RESOURCES, LLC
POND RIVER LAND COMPANY
PORCUPINE PRODUCTION, LLC
PORCUPINE TRANSPORTATION, LLC
POWDER RIVER COAL COMPANY
PRAIRIE STATE GENERATING COMPANY, LLC
RIO ESCONDIDO COAL CORP.
RIVERS EDGE MINING, INC.
RIVERVIEW TERMINAL COMPANY
SENECA COAL COMPANY
SENTRY MINING COMPANY
SHOSHONE COAL CORPORATION
SNOWBERRY LAND COMPANY
STAR LAKE ENERGY COMPANY, L.L.C.
STERLING SMOKELESS COAL COMPANY
SUGAR CAMP PROPERTIES
THOROUGHBRED, L.L.C.
THOROUGHBRED GENERATING COMPANY, LLC
THOROUGHBRED MINING COMPANY, L.L.C.
TWENTYMILE COAL COMPANY
WILLIAMSVILLE COAL COMPANY, LLC
YANKEETOWN DOCK CORPORATION
By: /s/ WALTER L. HAWKINS, JR.
--------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President
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NEW GUARANTEEING SUBSIDIARIES:
APPALACHIA MINE SERVICES, LLC
By: /s/ WALTER L. HAWKINS, JR.
---------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
COAL RESERVES HOLDING LIMITED
LIABILITY COMPANY NO. 1.
By: /s/ WALTER L. HAWKINS, JR.
---------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
COAL RESERVES HOLDING LIMITED
LIABILITY COMPANY NO. 2.
By: /s/ WALTER L. HAWKINS, JR.
---------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
COALSALES, LLC
By: /s/ WALTER L. HAWKINS, JR.
---------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
PEABODY COALTRADE INTERNATIONAL, LLC
By: /s/ WALTER L. HAWKINS, JR.
----------------------------------
Name: Walter L. Hawkins, Jr.
Title: Vice President & Treasurer
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SCHEDULE 1
NEW GUARANTEEING SUBSIDIARIES
APPALACHIA MINE SERVICES, LLC, a Delaware Limited Liability Company
COAL RESERVES HOLDING LIMITED LIABILITY COMPANY NO. 1, a Delaware Limited
Liability Company
COAL RESERVES HOLDING LIMITED LIABILITY COMPANY NO. 2, a Delaware Limited
Liability Company
COALSALES, LLC, a Delaware Limited Liability Company
PEABODY COALTRADE INTERNATIONAL, LLC, a Delaware Limited Liability Company
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